Order 35, rule 5 of Civil Procedure Rules : Hearing and disposal of case
(1) The case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of Order 10B shall apply to such suit so far as the same are applicable
(2) Where the court is satisfied, after examination of the parties, or after taking such evidence as it thinks fit—
(a) that the agreement was duly executed by them;
(b) that they have a bona fide interest in the question stated therein; and
(c) that the same is fit to be decided,
it shall proceed to pronounce judgment thereon, in the same way as in an ordinary suit, and upon the judgment so pronounced a decree shall follow.
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- Order 36, rule 1 - Summary judgment
(1) In all suits where a plaintiff seeks judgment for— (a) a liquidated demand with or without interest; or
(b) the recovery of land, with or without a claim for rent or mesne profits, by a...
- Order 36, rule 2 - Defendant may show cause
The defendant may show either by affidavit, or by oral evidence, or otherwise that he should have leave to defend the suit.
- Order 36, rule 3 - Application by Government
(1) An application under rule 1 by the Government may be verified by an affidavit of the Attorney-General stating that to the best of his knowledge and belief the plaintiff is entitled to the relief...
- Order 36, rule 4 - Time for defence
If a defendant is granted leave to defend he shall file his defence within fourteen days of the grant of leave unless the court otherwise orders.
- Order 36, rule 5 - Judgment for part of claim
If it appears that the defence set up in the affidavit by the defendant applies only to a part of the plaintiff’s claim, or that any part of his claim is admitted, the plaintiff shall have judgment...
- Order 36, rule 6 - Procedure where more than one defendant
If it appears to the court that any defendant has a good defence to, or ought to be permitted to defend the suit, and that any other defendant has not a good defence and ought not to be permitted to...
- Order 36, rule 7 - Leave to defend
Leave to defend may be given unconditionally, or subject to such terms as to giving security or time of trial or otherwise, as the court thinks fit.
- Order 36, rule 8 - Costs
(1) The costs of and incidental to all applications under this Order shall be dealt with by the court on the hearing of the application, and the court shall order by and to whom, and when the same...
- Order 36, rule 9 - Forms
Form Nos. 24 and 25 of Appendix A, adapted to circumstances, shall be utilised for the respective purposes for which they are designed.
- Order 36, rule 10 - Setting aside of judgment
Any judgment, given against any party who did not attend at the hearing of an application under this Order, may, on application be set aside or varied on such terms as are just.
- Order 37, rule 1 - Who may take out originating summons and in respect of what matters
The executors or administrators of a deceased person, or any of them, and the trustees under any deed or instrument, or any of them, and any person claiming to be interested in the relief sought as...
- Order 37, rule 2 - Order for administration of estate or trust
Any of the persons named in rule 1 may in like manner apply for and obtain an order for—
(a) the administration of the personal estate of the deceased;
(b) the administration of the real estate of...
- Order 37, rule 3 - Summons by vendor or purchaser of land
A vendor or purchaser of immovable property or their representatives respectively may, at any time or times, take out an originating summons returnable before the judge sitting in chambers, for the...
- Order 37, rule 4 - Summons by a mortgagee, mortgagor and others
Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or redeem any...
- Order 37, rule 5 - Caveats
An application under section 116 of the Government Lands (Cap. 280) Act or section 57 of the Registration of Titles Act (Cap. 281) shall be made by originating summons unless there is pending a suit...
- Order 37, rule 6 - Extension of limitation period
(1) An application under section 27 of the Limitation of Actions Act made before filing a suit shall be made ex parte by originating summons supported by affidavit.
(2) Any such application made...
- Order 37, rule 7 - Adverse possession
(1) An application under section 38 of the Limitation of Actions Act shall be made by originating summons.
(2) The summons shall be supported by an affidavit to which a certified extract of the...
- Order 37, rule 8 - Application under the Registered Land Act
An application under the Registered Land Act (Cap. 300) other than under sections 120, 128, 133, 138, 143 and 150 thereof shall be made by originating summons unless there is pending a suit involving...
- Order 37, rule 9 - Application under Chattels Transfer Act
An application under section 9 of the Chattels Transfer Act (Cap. 28) shall be made by originating summons ex parte supported by an affidavit setting out the grounds relied upon.
- Order 37, rule 10 - Summons by a member of a partnership
When the existence of a partnership, or the right to a partnership, or the fact of the dissolution thereof, is not in dispute, any partner in a firm or his representatives may take out an originating...
- Order 37, rule 11 - Summons by persons interested in deeds or wills
Any person claiming to be interested under a deed, will, or other written instrument, may apply in chambers by originating summons for the determination of any question of construction arising under...
- Order 37, rule 12 - Variation of trusts
An application for an order under the Trustee Act shall be made by originating summons returnable before the judge sitting in chambers; and the settler and any other person who provided property for...
- Order 37, rule 13 - Discretion upon summons for construction of document
The judge shall not be bound to determine any such question of construction if, in his opinion, it ought not to be determined on originating summons.
- Order 37, rule 14 - Forms
An originating summons shall be in Form No. 26 or No. 27 of Appendix A with such variations as circumstances may require, and shall be prepared by the applicant or his advocate and shall be filed in...
- Order 37, rule 15 - Summons to be filed and registered
The originating summons when filed shall be filed and entered in the register of suits, but after the serial number the letters “O.S.” shall be placed to distinguish it from plaints filed in ordinary...
- Order 37, rule 16 - Directions
The registrar shall, within thirty days of filing of the Originating Summons and with notice to the parties list it for directions before a judge in chambers.
- Order 37, rule 17 - Procedure
The day and hour of attendance under an originating summons to which an appearance is required to be entered shall after appearance be fixed for hearing in chambers of the judge to whom such summons...
- Order 37, rule 18 - Evidence and directions upon hearing of summons
At the time of directions, if the parties do not agree to the correctness and sufficiency of the facts set forth in the summons and affidavit, the judge may order the summons to be supported by such...
- Order 37, rule 19 - Powers of court upon hearing of summons
(1) Where, on an originating summons under this Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by...
- Order 37, rule 20 - Court may make orders as to costs incurred by any party
If an originating summons is adjourned into court, the judge may, if he deems the question to be determined is of sufficient importance, order that the costs be taxed on the scale applicable to suits....
- Order 38, rule 1 - Staying several suits against the same defendant
Where two or more persons have instituted suits against the same defendant and such persons under rule 1 of Order I could have been joined as co-plaintiffs in one suit, upon the application of any of...
- Order 38, rule 2 - Staying similar suits upon application by defendant
Where a plaintiff has instituted two or more suits, and under rule 3 of Order 1 the several dependants could properly have been joined as co-defendants in one suit, the court, if satisfied upon the...
- Order 39, rule 1 - Where defendant may be called upon to furnish security for appearance
Where at any stage of a suit, other than a suit of the nature referred to in paragraphs (a) to (d) of section 12 of the Act, the court is satisfied by affidavit or otherwise—
(a) that the defendant...
- Order 39, rule 2 - Security
(1) Where the defendant fails to show such cause the court shall order him either to deposit in court money or other property sufficient to answer the claim against him, or to furnish security for his...
- Order 39, rule 3 - Procedure on application by surety to be discharged
(1) A surety for the appearance of a defendant may at any time apply to the court in which he became a surety to be discharged from his obligation.
(2) On such application being made the court shall...
- Order 39, rule 4 - Procedure where defendant fails to furnish security or find fresh security
Where the defendant fails to comply with any order under rule 2 or rule 3, the court may commit him to prison until the decision of the suit, or, where a decree is passed against the defendant, until...
- Order 39, rule 5 - Where defendant may be called upon to furnish security for production of property
(1) Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him—...
- Order 39, rule 6 - Attachment where cause not shown or security not furnished
(1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the court, the court may order that the property...
- Order 39, rule 7 - Mode of making attachment
Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.
- Order 39, rule 8 - Investigation or claim to property attached before judgment
Where any claim is preferred to property attached before judgment, such claim shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in...
- Order 39, rule 9 - Removal of attachment when security furnished or suit dismissed
Where an order is made for attachment before judgment, the court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of...
- Order 39, rule 10 - Attachment before judgment not to affect rights of strangers nor bar decree holder from applying for sale
Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying...
- Order 39, rule 11 - Property attached before judgment not to be re-attached in execution of decree
Where property is under attachment by virtue of this Order, and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary, upon an application for execution of such decree,...
- Order 40, rule 1 - Cases in which temporary injunction may be granted
Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold...
- Order 40, rule 2 - Injunction to restrain breach of contract or other injury
(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after...
- Order 40, rule 3 - Consequence of breach
(1) In cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also...
- Order 40, rule 4 - Notice of application
(1) Where the court is satisfied for reasons to be recorded that the object of granting the injunction would be defeated by the delay, it may hear the application ex parte.
(2) An ex parte...
- Order 40, rule 5 - Ruling of the court
In all applications for injunction, the court shall, after inter-partes hearing deliver its ruling either at once or within thirty days of the conclusion of the hearing with notice to the parties or...
- Order 40, rule 6 - Lapse of injunction
Where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any...
- Order 40, rule 7 - Order for injunction may be discharged, varied, or set aside
Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.